The Military Intervention in Rio de Janeiro and Human Rights

Since February 21^st, 2018, Rio de Janeiro has been under military intervention. Brazilian President, Michel Temer, has tasked the armed forces with ending the “serious endangerment of public order” caused by the drug war between various armed gangs and paramilitary militias in Rio’s favelas, or shantytowns. The use of armed forces for control of crime is not a strange occurrence in Brazil, and particularly not so in Rio. Article 142 of Brazil’s Constitution charges the armed forces with, among other things, “guaranteeing law and order” at the request of the Executive Branch. In the last 25 years, the army has patrolled Rio’s streets 11 times, including during the 2014 FIFA World Cup and the 2016 Rio Olympic Games.

What makes the 2018 operation unusual is the wide range of powers being granted to the military, to the exclusion of civilian authorities. By means of Decree 9288/2018, President Temer declared the State under Federal Intervention and appointed General Walter Souza Braga Netto to serve as “Military Interventor”, able to “exercise operational control over all state organs related to public safety”.

The Ministry of Defense describes these operations for Guaranteeing Law and Order (GLO) as “operations of not-war”. According to the Ministry’s GLO Manual, “despite employing Military Power, at the domestic level, they do not involve actual combat, but, rather, can require, in special circumstances, a limited use of force”.

Control of crime in Rio is a high risk, high violence effort. In the first two months of the intervention, the city experienced over 1500 shootouts. Inserting an army into these conditions hardly seems like the ideal way to reduce tensions, and begs the question of what exactly is the Ministry thinking of when it describes the intervention as a “not-war”, “limited use of force” endeavor.

In late March, the Brazilian army made available its Rules of Engagement (RoE) for the Rio intervention. The rules diverge from international standards, going beyond the restrictions imposed by international human rights law, but considerably below the type of rules found in situations of armed conflict. This particular “not-war”, it seems, is somewhere in between the law enforcement and armed conflict paradigms.

Given the absence of sufficiently intense protracted armed violence and organized armed groups, however, the applicable rules for the Rio operation is international human rights law. These standards, reflected in the United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials and the case-law of the Inter-American Court of Human Rights, require lethal force to be a measure of last resort, only to be used in cases involving self-defense or the defense of others against a threat of death or serious injury – a standard known as “absolute necessity”. As stated by the UN Rapporteur on Extrajudicial, Summary, or Arbitrary Executions, lethal force “may not be used only to disperse protests, to arrest a suspected criminal or to safeguard other interests such as property”. In other words, “[a] fleeing thief who poses no immediate danger may not be killed, even if it means that the thief will escape”.

The Rio RoE, however, use an expansive understanding of absolute necessity. While they do state that force must be used proportionally and as a last resort, starting with “verbal alerts” and progressively escalating to non-lethal weapons, rubber bullets, tasers and, ultimately, live munition, they also state that “use of lethal munition by the troops can only be done, as last resort, when facing a case of serious threatening act against the physical integrity of the soldier, third parties, facilities and/or material objects essential to the fulfillment of the mission” (underline added). Use of lethal force in defense of objects contradicts international human rights law. Even more so considering the RoE do not detail what exactly counts as a “serious threatening act”.

The RoE do provide 11 examples of (merely) “threatening acts”. These include “persons or vehicles blocking the operations”, “person or group openly carrying firearms or explosive devices, when troops are within their attack radius”, “throwing rocks”, and “advancing against the troops or authorities, issuing threats, challenges, verbal provocations, with imminent possibility of physical aggression”. No case of street blocking, rock throwing or verbal provocation, regardless of how serious or vital to the operation, is enough to warrant use of lethal force. The RoE offer no criteria to distinguish which of these are mere threatening acts and which are serious threatening acts deserving use of lethal force, opening the door for potential abuse.

This inadequate standard is further aggravated when considering the army is engaged in a context where police officers themselves already believe “excessive use of lethal force [is caused by] a pervasive ‘culture of combat’ and corruption within military police battalions”. In 2015, Human Rights Watch documented 64 cases involving the deaths of 116 people that “revealed a routine disregard for international standards, Brazilian law, and internal police regulation governing the use of lethal force”.

Members of the Brazilian military police, who have been involved in the fight against crime in Rio for the past several years, told chilling accounts of human rights violations. According to Human Rights Watch, “[o]ne described his participation in an operation in which a fellow officer executed a suspected drug trafficker as he lay injured on the ground, and said he feared he would be killed if he reported what happened. Another recounted an incident in which he and other police officers set an ambush for suspected gang members, gunning them down as they fled from other officers, then planted guns on their two victims as they lay dead and dying in the street”.

This so-called “culture of combat” seems to be behind the first reported case of a person killed by a soldier during the Rio military intervention. On May 13^th, Diego Augusto Ferreira, a 25-year-old man, tried to avoid passing through a military checkpoint in the neighborhood of Magalhães Bastos. The checkpoint was placed for the protection of a military villa in the nearby neighborhood of Deodoro. Mr. Ferreira, who was hard of hearing and apparently riding a motorcycle he did not own, failed to heed instructions from the checkpoint guard and was shot in the chest.

Past studies in the United States have found a correlation between police militarization and an increase in violence, concluding that “demilitarization may secure overall community safety”. Use of the military and/or use of military tactics in Rio will likely follow a similar path of escalation. The Intervention Observatory, an initiative by Candido Mendes University, has already found an increase in shootouts since the start of the intervention, with no significant improvement in the security situation. In other similar contexts, militarization of crime-fighting has reached extreme levels, with the Geneva Academy’s 2017 War Report formally (although still controversially) listing the Mexican drug war as a case of non-international armed conflict. If militarization continues to escalate, it is not impossible for the Brazilian scenario to eventually reach a similar result.

The eventual application of the law of armed conflict, however, would not be a positive development in the fight against organized crime, especially in the densely populated cities of Latin America. More flexible rules on the use of lethal force would only escalate violence in what is already a very complex social crisis. It is important that countries facing drug and gang-related violence find means to combat it beyond mere militarization, avoiding an escalation of violence. Structural changes in how the government functions in these long-forgotten areas, particularly through social investment, police/justice reform and urban planning, targeting the roots of poverty and the creation of opportunities for social mobility, are essential. Militarization, in reality, is not a real solution, but rather part of the problem.